Marks (Migration)

[2017] AATA 944

Marks (Migration) [2017] AATA 944 (5 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dylan Charles Marks

VISA APPLICANT:  Mrs Maria Alexandra Salazar Defilippi

CASE NUMBER:  1619004

DIBP REFERENCE(S):  BCC2016/3433426

MEMBER:Fiona Meagher

DATE:5 June 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 05 June 2017 at 1:40pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Genuine temporary entrant – Visiting family in Australia – Review applicant husband working in New Zealand – Spouse visa application in process – Substantial compliance with previous visa conditions – Couple’s lease arrangement in New Zealand

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 November 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 16 October 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that the applicant intended to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant appeared before the Tribunal on 6 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Salazar Defillipi.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. In the present case, the visa applicant seeks the visa for the purposes of tourism and to visit family and friends. These are purposes for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

9. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

10. The applicant has previously held Australian visas (student and work) and complied with the conditions of them. Any withdrawal of visa applications and cessation of visas was explained to the Tribunal’s satisfaction.

11. The review applicant and visa applicant gave consistent evidence as follows:

    ·The review applicant is the Visa applicant’s husband and an Australian citizen. The parties currently live in New Zealand as the review applicant is pursuing business opportunities there.

    ·The visa applicant has secured employment and a work visa in New Zealand.

    ·The visa applicant has applied for Partner visa (Subclass 309), and both the visa applicant and the review applicant were very clear that they understood that any breach of a visitor visa would prejudice the likely outcome of that.

    ·The parties also made it very clear that they intended to return to Auckland after a holiday in Australia. The Tribunal has sighted a copy of the visa applicant’s contract of employment in New Zealand.

    ·The visa applicant intends to visit Perth, to see the review applicant’s family and friends (accompanied by the review applicant) for no more than three months, and probably less. They will also perhaps visit Melbourne on their way back to New Zealand.

12. In addition to the oral evidence given, the Tribunal sighted the following documents:

    ·Copy of Fijian marriage certificate with apostille stamp.

    ·Of the review applicant’s personal investment account showing funds available for the use of both the visa applicant and himself, and evidence of the Visa applicant’s personal funds available.

    ·A copy of the visa applicant’s work visa label for New Zealand, showing her current passport.

    ·A letter from Jack Chang of Queen City Law detailing the type of New Zealand visa the visa applicant holds, and the circumstances surrounding its grant.

    ·A letter indicating the status of the Visa applicant’s offshore partner visa application.

    ·A copy of the lease and bond lodgement forms in Auckland in the names of the review applicant and the visa applicant.

13. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

14. The Tribunal considers on the basis of the evidence that the visa applicant intends to comply with the conditions of her visa, including that she will not work or study while in Australia.

15. The Tribunal has also considered all other relevant matters (cl.600.211(c)).

16. The Tribunal considers that the application for a partner visa, a permanent job in New Zealand and the presence of her husband, the review applicant in this matter and her sponsor in the Subclass 309 application, working in New Zealand are strong incentives for the visa applicant to stay temporarily in Australia while visiting on a visitor visa applied for in the context of this application for review. Similarly, a positive outcome with respect to her Subclass 309 visa application is a strong incentive.

17. The Tribunal has considered the visa applicant circumstances overall and is persuaded that  her stated intention, of coming to Australia temporarily and for the express purposes of the visit with her husband, and to visit family and friends, is genuine. The Tribunal is satisfied that the visa applicant will abide by her visa conditions.

18. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are met.

    DECISION

19. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·            cl.600.211 of Schedule 2 to the Regulations.

    Fiona Meagher
    Member